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Tuesday, May 8, 2012

First Amendment prevents prosecution for recording police performance of public duties

(Reporters Committee) - The Illinois Eavesdropping Act, one of the broadest restrictions
on audio recording nationwide, is likely unconstitutional and may not be
enforced against the American Civil Liberties Union of Illinois when it
records conversations of police officers openly engaged in their public
duties, a federal appellate court ruled today.

The decision by the U.S. Court of Appeals in Chicago (7th Cir.)
is relatively narrow, but the court's decision prevents Cook County
State Attorney Anita Alvarez from enforcing the statute against the ACLU
and could be useful to other individuals who wish to challenge the
Illinois law.

"In order to make the rights of free expression and petition
effective, individuals and organizations must be able to freely gather
and record information about the conduct of government and their agents
-- especially the police," Harvey Grossman, legal director of the
Illinois ACLU, said in a statement.

The ACLU brought the lawsuit as a First Amendment-based preemptive
challenge, arguing that the threat of prosecution under the act chills
the implementation of the ACLU's police monitoring program. As part of
its expanded police monitoring program, the ACLU records police officers
without their consent when they are performing their public duties in
public places and speaking at an audible volume.

The organization's objective is to improve police practices, deter
and detect any police misconduct and create a record that may help
resolve any testimonial disputes, according to the group. The ACLU
claimed, as just one example, that it was deterred in November 2010 by a
fear of prosecution under the eavesdropping law from making recordings
of police activity at a protest in Chicago.

The eavesdropping law criminalizes the audio recording of any
communication without the consent of all parties involved, regardless of
whether the conversation was or was intended to be private, or whether
the recording was made secretly. The Alvarez case is just one
of a number of legal challenges to the law, as well as ongoing
legislative attempts at reform, according to the Reporters Committee for Freedom of the Press.

In a 2-1 decision by Judge Diane Sykes, the court held that the
Eavesdropping Act "burdens speech and press rights and is subject to
heightened First Amendment scrutiny." The ruling ordered the district
court to preliminarily enjoin Alvarez from enforcing the law against the
ACLU. Judge Richard Posner dissented.

In discussing a broad range of First Amendment cases -- including
those addressing campaign finance laws, movies and the right to gather
news -- the court recognized that the act of making an audio recording
is a necessary corollary of the rights of free speech and free press.
"[T]he eavesdropping statute operates at the front end of the speech
process by restricting the use of a common, indeed ubiquitous,
instrument of communication," the court said.

While the state argued that the law was a constitutional way to
protect individuals' privacy, the court rejected this argument. "By
legislating this broadly -- by making it a crime to audio record any
conversation, even those that are not in fact private -- the State has
severed the link between the eavesdropping statute’s means and its end,"
the court said. "Simply put, these privacy interests are not at issue
here."

The Seventh Circuit joins other courts to recognize that the First
Amendment protects the audio recording of police officers, including the
First Circuit, which held last year in Glik v. Cunniffe that the right to record police officials in the public performance of their duties is "clearly established."

Importantly, the court's injunction extends only to the ACLU and its
police monitoring program, according to Adam Schwartz, senior staff
counsel at the ACLU. However, it is still "forceful" precedent in favor
of other individuals and organizations who wish to record police conduct
in public, Schwartz said, adding that the ruling indicates a "very high
likelihood of success" in the federal trial court.

The Reporters Committee, joined by several other news media advocacy groups, filed an amicus brief
in the case, arguing that the criminalization of communications to
which there is no reasonable expectation of privacy chills socially
valuable newsgathering and watchdog activities and suppresses the spread
of important information. A representative of the Cook County State
Attorney could not be reached for comment.

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